Judge allows lawsuit against trooper, state police to proceed in Taser case

Apr. 24, 2013

Macadam Mason and his dog, Bear. / (Courtesy photo)

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Free Press Staff Writer

A judge has ruled that the Vermont State Trooper who shocked and killed a Thetford man in June is not immune to litigation, and that the lawsuit filed by the man’s partner may proceed in court.

Theresa Davidonis filed suit against Trooper David Shaffer and Vermont State Police in July, claiming Shaffer was “malicious, wanton, willful and outrageous” when he fired his Taser at Macadam Mason’s chest outside their home June 20.

An autopsy concluded that Mason, 39, died from the shock.

The Vermont Attorney General’s Office, which represents Shaffer and state police in the case, had asked Judge Timothy Tomasi in January to dismiss the claims alleged in Davidonis’ lawsuit.

Those claims, argued Assistant Attorney General Jana Brown, fail to allege Shaffer acted with gross negligence or willful misconduct. The trooper should therefore be granted immunity, in accordance with a Vermont law that generally protects state employees from being sued for on the job conduct, according to Brown.

Tomasi disagreed in his ruling filed April 17 in Vermont Superior Court in Chelsea.

“The factual allegations set out in the complaint,” he wrote, “are sufficient to allege claims of gross negligence or willful misconduct, at least at this stage.”

The judge rejected the defendant’s request to dismiss four of the claims alleged in the lawsuit, but granted its request to dismiss the fifth claim that alleged Shaffer was negligent.

“It’s extraordinary recognition of the rights of citizens,” said Davidonis’ attorney, Tom Costello of Brattleboro, Wednesday. “Secondly, it’s fundamental to determine that police officers, like every other citizen, are required to obey the law and treat people with reasonable care. And thirdly, it’s extraordinary recognition of the rights of disabled people, impaired people.”

Disabled people, Costello said, are often victims of misuse of force.

Evidence that might be presented in court, according to Tomasi, could come to show that Shaffer intentionally inflicted emotional distress on Davidonis, that he negligently inflicted emotional distress on the woman, that he should not have been on her property when he shocked Mason and that he should be subjected to punitive damages.

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“In cases that allege this kind of police misconduct, it’s not unusual for a court to refuse to dismiss the case at this stage because part of what has to happen, going forward, is greater development of the factual record,” said Cheryl Hanna, a Vermont Law School professor.

The state could file again for dismissal later in the proceedings, Hanna said. It could also seek an out-of-court settlement and may, according to the professor, be more inclined to do so following the judge’s ruling.

Brown declined to say Wednesday whether the judge’s order would push her office toward settling the case.

“Essentially, what we’ve received is a preliminary decision from the judge,” Brown said. “And now we’ll proceed with discovery and a vigorous defense in this matter.”

The discovery phase, she said, could take several months.

Vermont Attorney General Bill Sorrell cleared Shaffer of any criminal wrongdoing in January, saying the trooper fired his Taser at Mason in self-defense.

State police have said Shaffer and three other troopers responded to Mason’s home June 20 because Mason had called a nearby hospital and threatened to kill himself and others.

Davidonis drove home to meet the troopers, told them Mason had suffered a seizure the day before and had no access to weapons and asked them to leave.

The troopers then left the property, Davidonis checked on Mason and returned to work. State police called her back to the house a short time later because troopers had returned to her property.

During the second encounter, Shaffer confronted Mason and, knowing him to be unarmed, ordered him at gunpoint to lie on the ground. According to state police, Mason refused and instead yelled, made a fist and stepped toward Shaffer, who responded by firing his Taser.

“It is not clear why the police returned to plaintiff’s (Davidonis’) residence, but they soon came back,” Tomasi wrote in his ruling. “The allegations portray a settled and non-dangerous situation that was reopened by the police.”

Davidonis and her son witnessed the fatal confrontation and have said Mason raised his arms to surrender to police, and never made a fist or behaved aggressively. The lawsuit claims Shaffer fired his Taser at Mason without considering his “cognitive impairment,” in violation of state police policy, and shot him in the chest, an area of the body one should generally try to avoid hitting, according to the Taser manufacturer.